Dear Professor Dworkin,
The editors of SLATEasked me to kick off a discussion of the assisted-suicide issue by responding to the brief you filed in the company of five other distinguished scholars of moral philosophy, recently published in the New York Review of Books (March 27, 1997).
The most surprising thing about the brief is how little philosophy it contains. Most of the brief is lawyer talk–not very sophisticated lawyer talk, at that–about how a decision in favor of a constitutional right to assisted suicide is “compelled” by several earlier court decisions. In particular, you place great reliance on the statement in Planned Parenthood vs. Casey (1992) that matters “involving the most intimate and personal choices a person may make in a lifetime” are protected by the due-process clause.
I fear you have mistaken judicial rhetoric for legal reasoning. It is far from true that all personal and intimate decisions are constitutionally protected. I may not fry my brains on LSD; you may not sell yourself into slavery; neither of us is permitted to become a prostitute, or to marry another man, or to marry several other people at the same time; or to indulge in child pornography. Not all intimate and personal choices are constitutionally protected.
Due-process cases are not properly decided on the basis of generalizations and syllogisms (“Intimate choices are constitutionally protected; suicide is an intimate choice; therefore suicide is constitutionally protected”). Rather, legal reasoning proceeds by a careful examination of the particulars of the case, informed not primarily by abstract reasoning but by history and experience. Perhaps the best–and most often quoted–statement of this approach was made by the second Justice Harlan:
Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.
–Poe vs. Ullman, 367 U.S. 497, 542 (1961) (dissenting opinion)
The purpose of the due-process clause is not to allow judges to decide controversial issues for themselves, but to require the states to respect rights that, through tradition and experience, the nation has come to recognize as fundamental.
How might this approach be applied to the question of assisted suicide? What is the “balance” that “our Nation” has struck on this issue? As you admit, every state but one forbids physician-assisted suicide. The one exception–Oregon–is very recent. Half of the state legislatures have debated the issue since 1991, with nine states deciding to strengthen their laws against assisted suicide and none deciding to weaken them. In two out of three popular referendums, voters rejected proposals to legalize assisted suicide. Professional associations representing those most experienced in the care of the elderly and infirm–the American Medical Association, the American Geriatrics Society, and the American Psychological Association–have all expressed opposition to assisted suicide. Two multidisciplinary task forces, appointed by officials initially sympathetic to assisted suicide and representing a broad spectrum of perspective and expertise, unanimously recommended, after extensive investigation and discussion, that laws against assisted suicide should be retained.
On what basis can it possibly be said that “this nation” has “struck the balance” in favor of legalization of assisted suicide?
The truth is that we do not know the effects of legalizing assisted suicide. Some believe that it would enhance patient autonomy and ease the fear of a lingering, painful, and joyless process of death. Others believe that it would empower doctors, heirs, and cost-conscious hospitals to persuade vulnerable people to “choose” a fast, cheap, and convenient end–and would transform the moral-social norm from one in which people are encouraged to live to one in which the decision to live is treated as selfish and irrational.
I do not know which of these effects is most likely, and neither do you. When the effects of a proposed change are unknown, it is far better to leave the matter to the states, which are free to experiment, than to impose a single, fixed national solution in the name of the Constitution.